FBI agent Keith Baker sent electronic messages to a female courtroom deputy during the Don Siegelman trial, and Judge Mark Fuller and Assistant U.S. Attorney Louis Franklin were aware of it, according to recently unsealed documents in the Alabama bingo case.

Did Baker have a sexual relationship with the courtroom deputy in the Siegelman trial, as he did with court reporter Mallory Johnson (nee McCutchin) in the bingo case? Did Baker also have an affair with a juror in the Siegelman case? With how many women from the courtroom did Baker carry on affairs during perhaps the two most high-profile federal prosecutions in modern Alabama history?

The answers to all three questions are not clear. But it does seem clear that Baker is quite the active fellow when it comes to women and courtrooms--and rumors about his activities were so rampant that Myron Thompson, judge in the bingo case, vowed to investigate.

We don't know what Thompson ultimately found out, but he clearly considered the Baker/McCutchin affair a serious matter in the bingo case. And Thompson wanted to know more about Baker's possible dalliances in the Siegelman case. Does that mean the Siegelman convictions could be due for a review, based on widespread speculation about Baker's misconduct--of some variety--during the trial? That remains to be seen, but our inspection of the unsealed documents indicates Thompson was deeply concerned about Baker's apparent history of putting his sexual appetite ahead of justice matters while in court.

The Montgomery Advertiser, in breaking the story about the Baker/court reporter affair in the bingo case, reported that the FBI agent also had an "inappropriate relationship with a female courtroom deputy" during the Siegelman trial. We took that to mean a sexual relationship, in our reporting on Monday, but review of the documents indicates that was not explicitly stated in closed-door meetings between Thompson, defense lawyers, and prosecutors. It appears, however, that Baker engaged in some sort of misconduct with the deputy--and it likely was sexual in nature. Participants in the private bingo-trial discussions also were aware of rumors about a possible affair between Baker and a juror during the Siegelman case, but they appeared to reach no definitive conclusions about that.

How did Baker's behavior in the Siegelman case become a hot topic during the bingo-trial discussions? It started with comments from attorney Jim Parkman, representing former State Sen. Harri Anne Smith (I-Slocomb). Parkman started rolling with a mix of homespun humor and serious inquiry. From the transcripts:

MR. PARKMAN: My question for Mr. Baker goes into what is his mindset during the time of this investigation. Is he thinking about sweet thing over here, or is he thinking about this case? And these text messages are not important to try, as far as I'm concerned, necessarily with regard to having an affair. We know that happened.

But my question goes towards is it happening during hours that he's working? Is it happening during hours that he's involved in the investigation? Or is it happening during times that he's sitting in a truck listening to telephone calls out there, and he's text messaging sweet thing over there at the time he's supposed to be listening to the case? So that's number one.

MR. PARKMAN: Number two is, and I hate to say this, but I'm going to
say it because nobody else has. Mr. Baker's actions were
brought up again in another case, in the [Siegelman] case.
Now let me tell you what that tells me.

THE COURT: Were you all aware of that?

MS. [SUSAN] JAMES: Yes, Your Honor.

THE COURT: Okay. I mean, I feel like if his actions
in the [Siegelman] case, they are of concern to me from what I
have heard, but what I've heard is hearsay, which I will reveal
to you, just as, you know, judges talking. But if it's true, it
is of deep concern.If he, and I'm going to say it because I've heard it,
if he was e-mailing Judge Fuller's court reporter during that
proceeding, are you aware of that, that he may have been
e-mailing her? If that's true, your concerns have serious
merit.

THE COURT: I don't know if that's true or not, but
that's something that I, in light of what's happened today,
definitely want to look into.

Louis Franklin joins the conversation, correcting Thompson on the female courtroom figure in question. Franklin took over the Siegelman prosecution after the supposed recusal of U.S. Attorney Leura Canary:

MR. FRANKLIN: Two issues, Judge. It was his courtroom
deputy.

THE COURT: It was his courtroom deputy, yes.
Are you aware of that?

MR. FRANKLIN: I am aware of that.

THE COURT: Okay. Then you know -- I heard it as
hearsay, I did not hear it as fact, but in light of what has
happened here, it's something we definitely -

MR. FRANKLIN: Right, but there are two issues, Judge.
I want to make sure they don't get confused because the lawyers
in this room, what they have talked about is that there were
e-mails or messages sent between Agent Baker and a juror. I
want to make sure the Court understands -

THE COURT: I really don't know the details, but what I
want to do is, Mr. Franklin, I want you to sit down with the
lawyers here, get those spelled out, get your facts straight,
because I don't want to deal in hearsay other than to say
there's something I think we need to look at.
But I do think that aside from the issue of the affair,
an agent having an affair with an officer of the Court, like my
court reporter, is a very serious matter.

MR. FRANKLIN: And, Judge, I don't -

THE COURT: Let me finish. Let me finish. Let me
finish.

It is a very serious matter, and it does compromise, no
matter whether anything was exchanged about the case at all. It
does compromise the proceedings, at least in appearance, and can
compromise it in substance.

Several pages later in the transcript, the subject returns to Baker and the Siegelman juror, who has been reported as Katie Langer, otherwise known as "Flipper" for her habit of entertaining the jury panel by performing back flips during deliberations. According to documents from DOJ whistle blower Tamarah Grimes, jurors sent messages via U.S. marshals to the prosecution team, expressing (among other things) Langer's romantic interest in Baker. From the transcript, as Franklin returns to the subject of the Siegelman juror:

MR. FRANKLIN: I just want to make sure the Court
understands two things. The information that you asked me
about, I'm not really sure, I think there were -- I'm not sure
there were text messages or phone calls between Agent Baker and
the courtroom deputy -

THE COURT: Or a juror or something?

MR. FRANKLIN: No.

THE COURT: Not a juror.

MR. FRANKLIN: Two issues, Judge. One is that
allegation. I was aware of that because I did get a note from
Judge Fuller advising me of that, and it was put to bed. I
don't know what information or the substance was in any of those
communications.

But the other issue, Judge -

THE COURT: What other issue?

MR. FRANKLIN: There were two issues. The other one is
there was some contact with a juror during the [Siegelman] case,
and that has been brought up by at least one lawyer on the other
side before. That matter was investigated. That matter proved
to be an absolute rumor and not true.

THE COURT: The allegation that Baker and a juror -

MR. FRANKLIN: Yes, that some juror thought he was
cute. That the investigation that was done by somebody other
than anybody in our office or the F. B. I., revealed that was a rumor that was started by
the jury administrator in this courthouse. She has admitted it.

I just wanted the Court to know that because they have
painted such a bad picture of Agent Baker. Just to make sure
that they don't get mixed up.

How is Franklin's credibility on the Baker/Langer rumors? Well, the transcripts show Franklin knew about the Baker/McCutchin affair for at least 11 days before telling Justin V. Shur, his Department of Justice superior on the bingo case. Even then, the prosecution tried to permanently hide the issue from the court and defense attorneys, via a motion in limine seeking to make questions about extramarital affairs off limits to all government witnesses.

The Baker/McCutchin affair only came to light when attorneys for VictoryLand owner Milton McGregor refused to agree to the government's proposed limitations on questioning.

So what was the extent of Keith Baker's amorous activities during the Siegelman case? We do not know for sure, at this time. But we do know that Louis Franklin likely is not a dependable source of information on the subject.

Wednesday, July 29, 2015

Federal prosecutors knew about an FBI agent's affair with a court reporter in the Alabama bingo case and tried to cover it up, according to a recently unsealed motion from lawyers for VictoryLand owner Milton McGregor.

Louis Franklin, assistant U.S. attorney for the Middle District of Alabama, knew about the affair between agent Keith Baker and court reporter Mallory Johnson (nee McCutchin) for at least 11 days before revealing it to chief prosecutor Justin V. Shur, who was deputy chief of the Public Integrity Section at the U.S. Department of Justice (DOJ).

The prosecutorial team then tried to cover up the matter by filing a motion in limine, seeking to make the subject of extramarital affairs off limits during questioning of "any government witness." Only when McGregor's lawyers refused to agree to such a stipulation did the affair became known to all parties.

What picture does this paint of Louis Franklin, who also played a central role in the Don Siegelman prosecution--especially after the supposed recusal of U.S. Attorney Leura Canary? It indicates Franklin hid critical information, even from his own DOJ superior. And once Shur finally knew about the Baker affair, the government's reaction was not to be forthcoming. Instead, it tried to permanently hide the information via a motion in limine.

How did the prosecution's attempted cover up take shape? Here is how the McGregor defense team describes it in the unsealed motion:

The reasonable inference is that Government counsel [Franklin] learned of it, on or about May 13, from Agent Baker or from the Court Reporter. Why would either of them have told him on May 13 and not long before? The only reasonable inference is that they told him because they feared they had been caught--because just two days before that, on May 11, Mr. McGregor filed his witness list, and it included the name of the court reporter.

How ugly is this? From the McGregor motion:

It is fair to infer, at least unless the government explains otherwise, that this is what happened: Government counsel [Franklin] was affirmatively trying to keep Agent Baker's secret a secret even from Mr. Shur, and that counsel felt compelled to tell Mr. Shur only when there seemed a real danger that the defense already knew.

The McGregor team repeatedly uses the word "fraud" to describe Baker's actions. And the same word apparently applies to McCutchin. Multiple defense attorneys state in the unsealed documents that she falsely certified on transcripts that she "was not in any manner interested in the results" of the case. In fact, of course, she was engaged in a sexual relationship with the chief government investigator, tainting much of the evidence in the grand-jury process--and the resulting indictments. From the McGregor motion:

When Agent Baker failed to the tell the Court (or, according to the Government, to tell the prosecutors) that the Court Reporter's certification was a misrepresentation, and failed to tell the Court or others of his own actions that had tainted the Grand Jury process, he withheld material information that he had a duty to disclose. He also, quite likely, affirmatively misled his supervisors, his co-workers, and his wife; but whether or not he made affirmative false statements, he was party to an intentional deception through the Court Reporter's misleading certification, and through failure to disclose under circumstances where disclosure was required. In other words, he engaged in an egregious pattern of deception and fraud . . . . He ignored the interests of justice . . . in order to pursue his own personal agenda.

The impact of that deception likely still is being felt because of Baker's missing text messages, which could shed considerable light on the government's cover up--and who exactly was involved:

Agent Baker's secretive affair helps explain another aspect of the case, which is why [his] "text messages" from the period of January through mid-June 2010 are missing. . . . The evidence of the affair provides an explanation, and this evidence makes it more probable that Agent Baker intentionally deleted his text messages from this period in order to cover his tracks.

After reading the unsealed documents, a reasonable person must wonder how U.S. Judge Myron Thompson ever let this case go to one trial, much less two. In fact, the McGregor lawyers note the double standard that apparently was in play:

If the shoes were on the other feet, someone would be prosecuted. Imagine if a target's lawyer was having an affair with the grand jury court reporter, and if the court reporter nonetheless certified that she had no interest whatsoever in the outcome of the matter, and if the target's lawyer knew of that false certification. The Government's outrage would be off the charts, and people would be prosecuted. Yet when it is the Government's agent who engages in such egregious and deceptive conduct, the Government contends that it is irrelevant.

Both Baker, lead agent on the case, and court reporter Mallory McCutchin (she was Mallory Johnson at the time, but since has taken back her maiden name) knowingly subverted the grand-jury process, attorney Jim Parkman said.

According to recently unsealed documents, Parkman suggested the matter be referred to George Beck, U.S. attorney for the Middle District of Alabama, for a grand-jury investigation. "This is a crime," said Parkman, who represented former State Sen. Harri Anne Smith (I-Slocomb).

VictoryLand owner Milton McGregor perhaps was the most high-profile defendant in the two bingo trials, which produced three guilty pleas and zero convictions--proving to be one of the most embarrassing outcomes for federal prosecutors in recent memory.

During a closed-door meeting with U.S. Judge Myron Thompson, federal prosecutor Justin V. Shur tried to downplay the significance of the e-mails between Baker and Johnson. But Parkman was not buying it:

In reading the text messages, Your Honor, Mr. Shur pointed out certain things, but he left out two things that are the most important in here. He just skipped over it
like it didn't even exist.

Now, the first one is very clear . . . where Ms. Johnson sends a text message to [Baker], "Don't repeat anything I told you about the grand jury today, please." The response is even more interesting, "I never do." This hadn't been a one-time thing. She has been telling him things about this grand jury and testimony. It is obvious by the words in here that she has been leaking information to him.

Why is this important? Parkman explains, referring to Baker's sworn testimony during a Saturday hearing on the text-message issue:

The importance of this is two-fold. A, it gives him information that he's not entitled to, to either correct with witnesses or to investigate further for the Government's side. Number two, this is a crime. Number three, I was there Saturday, and . . . I did not hear him tell this Court under oath, "Yes, we talked about grand jury stuff." I did not hear him tell you that. That is
perjury. There is no other way around it.

And I'm saying to you that I totally agree with you, the good old boy network is in place. They know about this.

Mallory McCutchin

The "good old boy network" apparently is a reference to Bob Riley and his allies--and Parkman soon would mention the former governor by name. But first, he had a second point about the Baker-Johnson text messages, especially one that referred to the Special Grand Jury (S.G.J.):

Again, look at what she says.

"Did you
get my text about the S. G. J. three?"

Answer: "I did. That's a lot of stuff."

Baker: "Is that the last two days?"

"Yep. You've got to read it too."

Parkman, it seems, can't believe what he is reading--and that draws his attention to Bob Riley:

Since when do we start giving grand jury information from a court reporter . . . to investigators? And what's troubling to me is, there have been a lot of innuendos in this case about a relationship, not from me, and I didn't think much of it at first, a lot in here about Governor Riley and his work. [Baker is] going to see Governor Riley in here after he has access to all the grand jury information. So what's up with that?

Parkman clearly sensed something smelly about the whole scenario:

Now, I don't know, and I'm not that smart, but I'll tell you this, when I saw this, this was appalling to me after [Baker's] testimony. You may not think so, Your Honor, but I tell you
what, when you have an F. B. I. agent get on this stand and swear under oath to you nothing's going on about this thing and it's right here . . .

So I think this is more serious than what's just the Government going, "Oh, it's just a love affair." I don't mind a love affair, have at it, but when it involves my client and this
investigation and this case and lying to your face, I think that it's more serious than that.

What should be done about it? Parkman had some clear ideas:

Now, here's my response of what we need to do. I think it needs to be taken -- I think serious consideration. . . .

Number two is, I think that you should get with, because this is secret in here, there's nothing we can do about it as lawyers, but I think you should get with George Beck, the new U. S. Attorney, and at least begin a process of a grand jury investigation with regard to charges. I'm sorry to say that, but this is serious stuff, especially in light of what I brought to the Court's attention about some rumors in the past. I don't
like rumors, but I will tell you that something more may come to light . . . about that. That may not be a rumor anymore.

Monday, July 27, 2015

An FBI agent who played a central role in the Alabama bingo trial and the Don Siegelman prosecution was conducting extramarital affairs with court personnel during both cases, according to a report yesterday from the Montgomery Advertister.

Agent Keith Baker's affair with a court reporter became known during the 2011 bingo trial, where VictoryLand owner Milton McGregor was among several high-profile defendants. At the same time, an assistant U.S. attorney told federal judge Myron Thompson that Baker had carried on "an inappropriate relationship with a female courtroom deputy" during the Siegelman trial in 2006.

The Advertiser obtained records that show more than 8,000 text messages sent and received by Baker during the bingo investigation are missing from his phone and from backup computer servers at FBI headquarters in Virginia. Defendants were able to retrieve a few messages from Baker's phone, and one of them suggested the FBI agent had communicated with Governor Bob Riley in late 2010.

The new revelations probably explain Baker's mysterious absences from the courtroom during key junctures in the bingo trial. They also add to the substantial string of stories that raise questions about Baker's character. For example, the Montgomery Independent reported that Baker and another FBI agent harassed former deputy attorney general Bob Caviness in the week's leading to Caviness' suicide in November 2010--all because the agents mistakenly suspected Caviness was trying to help McGregor during the bingo probe.

Does that sound like Baker took an objective approach to his investigative work? No, it does not. Is it possible that Baker violated the due process rights of McGregor and other defendants, who supposedly are guaranteed a disinterested prosecution team under the U.S. Constitution? Yes, it is.

Baker now works as an investigator in the Alabama Attorney General's Office. Both Baker and the AG's office declined interview requests, the Advertiser's Josh Moon reports.

How did all of this come to light? Moon explains:

Details of Baker’s affair and an alleged cover-up are contained in thousands of pages of previously-sealed motions, orders and transcripts from closed hearings and in-chambers conferences, all of which were recently made public when a federal judge granted the Montgomery Advertiser’s motion to unseal those records. The Advertiser filed that motion last September after learning of the sealed records during its reporting on the history of gambling in Alabama.

Those records highlight a three-month-long fight — a sort of secret trial-within-a-trial — between prosecutors and the team of defense attorneys, who were representing the nine defendants in the case, over whether to allow Baker to be questioned in open court about the affair.

* The Siegelman trial resulted in convictions for the former governor and codefendant Richard Scrushy, former CEO of HealthSouth. Should those convictions now be reviewed, were they possibly tainted by Keith Baker's extracurricular activities?

* Was there, in fact, an attempt to cover up Baker's misdeeds? If so, who was involved, and what form did the cover-up take?

* Does the Baker text message that references a conversation with Bob Riley confirm what many have believed all along--that the former governor played a major role in pushing for the bingo prosecution?

* Can things get any worse for Attorney General Luther Strange? In recent months, he has forced out assistant AG Sonny Reagan and investigator Gene Sisson for leaking grand jury information related to the investigation of House Speaker Mike Hubbard (R-Auburn) in Lee County. Now, it looks like another member of the AG's staff has a history of engaging in unethical activities.

* What if the FBI retrieves all of the messages from Baker's phone, and they reveal that the bingo prosecution was a sham from the outset? Should the U.S. Justice Department conduct an investigation of phones and computers used by all government investigators and prosecutors during the case? Should a similar investigation be conducted related to the Siegelman case? What if Keith Baker represents the tip of a massive iceberg of corruption, which originated when George W. Bush officials were in charge of the DOJ?

Are the sexual escapades of a government investigator important in the context of a federal investigation and trial? This, from Josh Moon's report, helps answer that question:

After learning of Baker’s transgressions — and then being told by Assistant U.S. Attorney Louis Franklin that Baker also had an inappropriate relationship with a female courtroom deputy during former Gov. Don Siegelman’s trial — Thompson let his displeasure be known.

“It is a very serious matter ... and it does compromise the proceedings, at least in appearance, and can compromise it in substance,” Thompson said from the bench during one of the closed hearings. “If a witness was having an affair with my court reporter, I’ll tell you right now, that court reporter would not be working for me tomorrow. Now that’s how serious it is.

“And that’s in a courtroom. A grand jury proceeding is just so serious, because there’s no judge presiding. The integrity is just — it’s paramount.”

As for the missing text messages, Thompson allowed an FBI information-technology expert to be questioned by both sides in a closed hearing:

Jason Amos, then an IT specialist for the FBI, testified that FBI-issued cell phones are backed up by a server, which meant that any text message Baker sent or received on his FBI Blackberry should have also been duplicated and stored at FBI headquarters.

Baker testified that when he received the request to provide his text messages for the times related to his investigation, he realized they were gone. A check on the FBI servers revealed the copies were also missing for that period of time.

Baker’s more than 8,000 text messages were the only ones Amos said he could say for certain were missing from any FBI agent in the country, although he added he wouldn’t necessarily know of missing messages unless asked to pull records for specific agents. While messages did sometimes go missing, Amos said the other agents he checked during that span experienced no issues and that there had been no changes to the system that would have prompted or corrected an issue with the servers.

The FBI was able to retrieve time stamps on the missing messages, and they revealed that some of the missing messages went to and from former Sen. Scott Beason, who was a government witness in the case.

Of the few messages that were retrieved, what about the one that referred to Bob Riley?

Despite the missing messages, the defendants were able to get some messages from Baker’s phone. Of the 10 messages Thompson allowed into the record, one exchange in particular stood out to the pro-gaming faction.

“You love it,” she replied. Then, four minutes later: “Hope you are having fun.”

“I’m having fun,” Baker replied.

McGregor’s attorneys, who never got an opportunity to question Baker about the message, believe it could be the smoking gun link tying the former governor to the investigation. But government attorneys denied that, saying the text was an innocent, tongue-in-cheek joke by Baker, who had been on the field at Auburn’s homecoming football game and shook hands with Riley at one point.

For his part, Riley has denied any involvement in the case, and during an interview with the Advertiser last year, Riley said the allegations “simply are not true.”

All of this raises more than just ethical questions for Alabama taxpayers; it also raises concerns about finances. According to Moon, reports from various sources show the state has spent more than $9 million on an anti-gambling crusade that Riley launched in 2008, and Strange continued upon his election in 2010.

Now, it looks like the whole process might have been tainted with corruption.

Friday, July 24, 2015

A log of service attempts in the Rob Riley and Liberty Duke defamation lawsuit shows that an Alabama deputy admits conducting an unlawful "pretext" traffic stop in order to serve my wife and me with court papers. But the ugly activity does not stop there; the log shows that Shelby County Sheriff's Office invaded our privacy in extraordinary ways--especially when you consider this was a civil matter, with no criminal allegations whatsoever.

These issues become particularly troubling in light of our reports from earlier this week (see here and here) about a letter from attorney David Gespass, who reviewed the Riley/Duke file when it was sealed. The file showed, Gespass stated, that no summons was issued in the case until October 16, 2013, long after Officer Mike DeHart had allegedly "served" us via an unconstitutional traffic stop. The file also showed that as of October 31, the date of Gespass' letter, we had not been served--by DeHart or anyone else. (For the record, there were no other service attempts after the DeHart episode on September 29, so that means we never were served--with or without a summons.)

We will address the legal implications of all this in a moment, but first, let's look at the invasive nature of Alabama deputies' actions against us--and the information comes from the sheriff department's own records.

Let's look at what the log reveals. And keep in mind that each visit that we witnessed involved two or three deputies and multiple vehicles. On at least one occasion, they parked an SUV at an angle blocking our driveway, as if to ensure that dangerous criminals could not escape the premises.

(The full log can be viewed at the end of this post. The Gespass letter also can be viewed at the end of this post.):

* On 9/26/13 at 19:56 hours (after dark)--Deputies checked the power meter at the back of our house, opened our mail box to check for mail, and again looked inside our garage-door windows. Being after dark, this was one of multiple occasions in which they shined lights in our windows.

* On 9/26/13 at 20:50 hours (after dark)--This was at almost 9 p.m., and deputies again shined lights in our windows.

* On 9/28/13 at 19:11 hours--This probably was after dark or near dark. More looking in the garage, more shining of lights in our windows.

* On 9/29/13 at 12:34 hours--Deputy admits on log to conducting surveillance on our house for approximately two hours. (Do they do this in investigations of a potential drug-trafficking ring? Probably not, and this involved civil papers that were nowhere near the deadline for service.) More looking in the garage.

I'm not an expert on the law that governs process servers (deputies or otherwise) in the course of their work. And I understand that they have a right to knock on the door in an effort to get attention. But do they have a right to walk all around your house (front and back), to look inside your windows repeatedly (sometimes with flashlights), to check your power meter, to check your mailbox, to come multiple times after dark?

Do citizens have at least some expectation of privacy, on their own property, when they are the targets of process servers?

In a country where we seem to treasure "Second Amendment remedies," is it wise to allow this kind of invasion on private property? How many citizens would have taken a pistol or rifle and shot one of these deputies at some point in this process?

I'm a liberal, and I'm not particularly fond of guns--although I'm becoming more and more fond of them with each passing day. Would I blame a citizen who took matters into his own hands against this kind of wildly invasive activity? No, I wouldn't.

Am I starting to see the value of "Second Amendment remedies," especially when cops and the courts have proven they won't protect your rights? Yes, I am.

That brings us back to the shocking revelations in the David Gespass letter. A summons is an extremely important document in any civil case; it's the piece of paper that starts a lawsuit. If a summons has not been issued and served on defendants, the court has no authority to hear the case.

At the time of all this activity on our property, there was no lawsuit, and without a summons, deputies had nothing to "serve." That means they had no legal authority to be on our property--converting their actions from "law-enforcement work" to regular criminality. They probably committed criminal trespass, criminal surveillance, and possibly other state-law violations. Tampering with our mailbox likely constitutes a violation of federal law.

Essentially, we were being terrorized by packs of criminals for six days--all under the guise of "serving" us with a lawsuit that did not exist, with no summons call us to court or creating court authority to hear the case.

Phillip Sims recently drove to his job at Turner Industries in Decatur, Alabama, with the Confederate battle flag on his truck. A plant supervisor took him outside and advised him to remove the flag from his truck. "I hate to be the one to tell you that," the supervisor reportedly said, "but if you don’t, I’m gonna have to fire you." Sims refused to remove the flag, and he was fired.

The story does not end there, according to WHNT of Huntsville:

[Sims] says the company has called him three times since Monday morning offering to rehire him if he’d just take the flag off his truck. But now, Sims says it has just gone too far and he stands by his actions. “I’m unemployed now but I still feel that I made the right decision,” says Sims.

Apparently, Phillip Sims is not too bright, at least when it comes to workplace law. With the demise of unions, which never were strong in the South to begin with, most workers have almost zero protections on the job. Alabama, like every state but Montana, is an at-will employment state. That means workers can be fired "for a good reason, a bad reason, or no reason at all."

The only exception is that employers cannot violate federal discrimination laws. Based on photos of Phillips Sims, he appears to be an able-bodied white male under the age of 40--one who happens to favor cowboy hats and giant belt buckles. That means he likely does not fall into any protected class (by age, gender, age, disability, etc.). Without a union--and I'm guessing Sims is a Republican who does not support unions--he has zero protections on the job.

So, why stand up for the Confederate battle flag anyway? "It’s a statement of our heritage and it’s just my right to have it, and I don’t think that I should just give it up because somebody told me I had to," Sims said. Well, unemployment now is part of your heritage too, so good luck with that.

As for discrimination, Turner Industries reportedly has fired one other employee for the same infraction, so that means the company isn't discriminating on the Confederate flag issue--it's firing everyone who makes a show of the flag at work. If Phillip Sims tries to get his job back through the legal process, he will be "sh-t out of luck."

Is that harsh? Yes. Is it fair? Not necessarily. But that's apparently how many Americans--especially the ones who vote for anti-union Republicans--want it. So the message to guys like Phillips Sims is, "Enjoy your flag while you fill out job applications."

Here's another tough lesson for young Mr. Sims: His statement that he has a "right" to display the flag implies that he thinks the First Amendment right to free expression will protect him. But in workplace terms, the First Amendment only prohibits the government from stamping out free speech. That means the First Amendment protects only state and federal employees in the workplace--and that's as long as their speech involves matters of public concern.

For example, I had every right to start Legal Schnauzer--a blog about corruption and injustice in our legal system, a matter of clear public concern--while I was a state employee at UAB. In fact, I never would have started the blog if I had worked at Radio Shack, Wal-Mart, Regions Bank, or any other private employer.

But here's another harsh reality, even for government employees. Don't assume your employer is going to follow the law or a court will uphold the law. Little did I know that UAB, a university that supposedly stands (at least a little) for integrity and high ideals, would fire me in violation of the First Amendment. Little did I know that, when I challenged my termination in court, a federal judge named William M. Acker Jr. would let UAB get away with breaking the law.

In a "charming" display of "honesty" right out of an Orwell novel, Acker told me to my face--in open court--that he was going to cheat me. And he did exactly that. My speech, via this blog, was constitutionally protected, but I'm still out of a job--thanks to a handful of corrupt individuals at UAB and an equally corrupt federal judge. (You can read Acker's vow to cheat me in a court transcript at the end of this post. On pages 14-15, he not-so-subtly suggest that I read up on a writ of mandamus, which is an interlocutory appeal, asking a higher court [the U.S. Eleventh Circuit, in my case] to force a trial judge to follow the law.)

In so many words, Acker was telling me, "I'm going to rule against you on every tiny detail, at every turn, and I'm going to force you to waste time and and huge amounts of money to repeatedly go to the Eleventh Circuit in an effort to force me to uphold the law--that's the law that I took an oath to uphold, but I'm going to piss all over it in your case. And you can't stop me." In fact, I could not stop him because his crooked federal cronies protected him.

These people, and Judge Acker, have ruined my life and my wife's life--and they seem to think it's funny to pull such a scam on someone they know did nothing wrong in the workplace--after all, their own grievance committee found I shouldn't have been fired, they're own IT investigator stated in a hearing that I never wrote my blog at work. But former HR director Cheryl Locke and former president Carol Garrison upheld my termination anyway. And UAB lawyer Lisa Huggins sat in court like a Cheshire cat, knowing that Acker was cheating me--to her apparent benefit.

All of these folks seem to think its easy--even fun--to get away with scams like that. Perhaps they will learn differently someday.

And that reminds me of another lesson for young Mr. Sims: You were lawfully fired at Turner Industries, and you brought it on yourself, but there is plenty of time for you to someday be the target of a real screw job in the workplace. How will you feel then?

I can tell you how I feel now. If someone were to bludgeon to death Judge Acker, the corrupt lackeys at UAB, and whoever was pulling all of their strings (Rob Riley and company), I would want to be right there to cheer. And if someone were to take all of their carcasses and run them through a tub grinder, I would cheer that too.

By the way, I have a friend who says certain hard-nosed federal contractors have been known to initiate heart-to-heart discussions with certain individuals who cause them displeasure. During the discussions, the contractors let the person know that he could wind up being passed through a tub grinder, a large and loud device that chops objects into little bits.

That, my friend says, tends to resolve a lot of problems. I'm starting to have fantasies about certain people facing a grim fate via a tub grinder--and it makes me smile.

So there you go, Mr. Sims. That's what a real workplace screw job feels like. I bet there's one waiting in your future.

Meanwhile, Mr. Sims has told the press that he has no regrets about standing up for the Confederate flag. That's good because his job is long gone--and it ain't coming back.

A tweet from April 15 of this year suggests right-wing media maven Ali Akbar and his lawyer, G. Baron Coleman of Montgomery, Alabama, have inside information about who is responsible for my incarceration, the foreclosure (probably unlawful) on our home, and the dubious lawsuits that bookended both actions.

This could have serious implications for Coleman's legal career. Rule 8.3 of the Alabama Rules of Professional Conduct requires a lawyer to report misconduct to a tribunal or other authority with the power to investigate. Lawyers (Rob Riley and Jessica Medeiros Garrison) launched both lawsuits in question, and if Coleman knows they were bogus or filed for improper reasons, he has a duty to report that. Instead, he is making light of the subject on Twitter.

If Coleman was involved in a scheme to deprive my wife, Carol, and me of our freedom and our home--or if has been helping to cover up such activity--that could call for the involvement of criminal authorities. At the very least, the tweet reveals Akbar and Coleman to be juvenile (make that infantile) nitwits who apparently resort to online taunting because they have nothing creative or intelligent to say.

You can read the first part of the Twitter conversation at the beginning of this post, and the second part is at the end.

Akbar starts the festivities by tweeting about Matt Osborne, the editor of Breitbart Unmasked, and me--with a reference to a $3.5-million default judgment against me in the Garrison case. The default judgment, by law, is due to be overturned, and that process is ongoing, but it's anyone's guess what actually will happen.

Removing extraneous comments from a couple of other folks, here is the conversation between Akbar and Coleman:

Coleman: The last three year's of that guy's life is a fine example of what not to do.

Akbar: His whole existence.

Coleman: He's judgment-proof, has nothing. No reason to bother fighting it. $1 might as well be $10 million to him.

What help was Matt Osborne supposed to have provided related to the Garrison lawsuit? I have no idea. What have I done in the last three years that, in Coleman's mind, is a "fine example of what not to do"?

I've written a blog about legal and political corruption in Alabama and beyond, and none of my reporting ever has been found false and defamatory at trial. In other words, I've abided by the First Amendment right to a free press, only to be arrested inside my own home, with no sign or mention of a warrant--which means my five-month incarceration was the result of a kidnapping.

Baron Coleman doesn't support the First Amendment? He enjoys making light of kidnappings, false arrests, and police abuse? That's how it looks from here.

Then we learn that Coleman has knowledge about our finances, stating that we have "nothing." How does he know that? Has he, or someone he knows, gained unauthorized access to our banking information?

How's this for irony? Both Akbar and Coleman make frequent references to their supposed faith, claiming to be serious Christians. Coleman wears his Catholicism on his sleeve and speaks out against abortion rights, apparently on moral grounds. But what kind of morals and ethics do Akbar and Coleman really have?

Many theologians consider the Golden Rule, as stated in Matthew 7:12, the most profound passage in The Bible--going to the very heart of the Christian message. From The King James Version:

Therefore all things whatsoever ye would that men should do
to you, do ye even so to them: for this is the law and the prophets.

In other words, act toward others as you would like them to act toward you. Public records and reports show Akbar has been convicted of multiple felonies and has trolled online for gay sex via the Grindr app, so we know he's a phony and a scam artist. But one tends to expect more from Coleman, a lawyer who spouts his righteous rhetoric on radio, television, and online.

But Coleman, like Akbar, appears to be an empty vessel. On his Twitter account, Coleman reveals that he has five children and a wife. That brings this question to mind: "Mr. Coleman, how would it feel if your loved ones had been tormented, harassed, and abused, as mine have been? What if someone had stolen everything you had ever worked for, putting your wife and children at threat of starvation? Would that be amusing to you? Would you be pleased to go on Twitter and find that others are having a good chuckle because your loved ones have been victimized?

"In other words, Mr. Coleman, is your professed Christianity just a facade? Does the conversation that flows from Ali Akbar's tweet reveal who you really are?"

Wednesday, July 22, 2015

Yesterday's release of dash-cam video from the Sandra Bland traffic stop in Texas brought flashbacks of my own nightmarish experiences with Alabama deputies during traffic stops. In fact, watching the 52-minute Bland video was so disturbing--and hit so close to home--that I could hardly sleep last night. And when I did drop off for a few minutes, I had nightmares of people grabbing at me.

Bland died after three days in a Texas jail, and authorities claim she committed suicide--a finding her family, understandably, does not buy. (A grown woman can hang herself with a flimsy trash bag? Seems hard to believe.) I managed to survive my five-month stay in the Shelby County, Alabama, jail, but the similarities between the Bland traffic stop and the two I experienced are enough that . . . well, I hardly slept last night, and I doubt I will do much better tonight.

What is the key similarity? The Bland dash-cam video shows that the Texas officer provoked the whole thing. She should have gotten away in about five minutes' time with a warning for allegedly not signaling while making a lane change. But the officer's hyper-sensitivity and stubbornness turned a simple matter into a national story--and a tragic death.

I witnessed similar law-enforcement behavior on two occasions, as Alabama officers sparked incidents where evidence suggests they had no lawful grounds to stop me at all.

The key sequence in the Bland video begins at the 8:40 mark, as trooper Brian Encina approaches her stopped car after writing up a warning in his vehicle. Encina notes that Bland seems irritated, and she matter-of-factly responds that she is irritated--because the only reason she changed lanes was because she saw the officer approaching rapidly in her rear-view mirror and thought he needed to get by. (You can view the video at the end of this post.)

Encina then asks Bland to put out her cigarette, and she objects--noting, correctly, that she's in her car and she doesn't have to put out her cigarette. Encina immediately asks her to step out of the car, and when Bland (again, correctly) states that there is no lawful reason for her to step out of the car, Encina opens the door and starts reaching for her, says he's going to drag her out, and even threatens her with a taser. From there, the encounter turns really ugly, with Bland placed in handcuffs, even though it's hard to see evidence of her committing any crime.

This is very much like my first experience in Alabama, with officer Mike DeHart. My wife, Carol, and I were stopped at the North Shelby County Library, after DeHart claimed he had witnessed me roll through a stop sign (while making a left-hand turn at a "T" intersection). I immediately told DeHart I had not rolled through that stop sign, but he took my license and registration and returned to his vehicle. He came back to us and handed me a warning and returned my license and registration--meaning the traffic stop, by law, was over.

But DeHart didn't let it end there. He handed me a stack of papers and smugly said, "Mr. Shuler, you've been served." I looked at the papers, saw the names Rob Riley and Liberty Duke, and quickly realized DeHart had stopped us only to "serve" a complaint in a lawsuit. The whole story about rolling through a stop sign was a lie. As DeHart walked back to his vehicle I called him a "fraud" and a few other choice words. I got out of my vehicle, went to his patrol vehicle (where he was sitting with the windows up) and let him know in loud, clear, and colorful language that I knew he was a liar and a cheat.

As I was walking away, DeHart got out of his vehicle and directed me to spread my hands across the trunk of our car. I ignored him and opened the door to get back in our car. Like Ms. Bland, I wasn't about to let a corrupt cop treat me like a criminal when I hadn't violated any law. I think DeHart uttered something about "disorderly conduct," which is complete BS--and I knew it.

I tried to shut the door to our car, but DeHart blocked the door with his hip, reached for his handcuffs with one hand and reached for me with the other. He would have arrested me, but Mrs. Schnauzer had what I call an "Exorcist" moment. She started screeching, screaming, and seething to the point that I thought her head was going to start spinning. She made a motion to get out of the car as if she was going to jump on DeHart. With parents and children heading into the front door of the library not too far away, DeHart seemed to realize that creating such a scene was not a good idea, and he let us go.

Was I angry, like Ms. Bland? Yes. Did I have a right to be angry, like Ms. Bland, in the face of a lying, cheating law-enforcement officer who was trying to provoke me? Yes. Did I break any laws? No, and neither did Ms. Bland.

My second encounter came on the night of my arrest, October 23, 2013, when officer Chris Blevins drove at a high speed down our driveway and tried to block me from entering our garage. He failed to block me, so I drove on in, and Blevins exited his vehicle, came to the edge of our garage, and asked me to step outside.

As happened in the Bland case, Blevins gave me no lawful reason that I had to leave my own home. He showed no warrant, didn't say he had a warrant, said nothing about why he was even on my property. I said I wasn't coming outside and instructed him to get out of our house (the garage is under our house, part of the structure). Blevins came in and proceeded to beat me up, knocking me to a concrete floor three times, dousing me with pepper spray, and placing me in handcuffs before dragging me out of the garage--all over alleged contempt of court in a civil matter (the Riley/Duke lawsuit).

I hope Sandra Bland's family gets to the bottom of what really happened to her in Texas. I hope to someday get to the bottom of what happened to me in Alabama. Both cases present clear evidence of civil wrongs--and I suspect criminal actions are involved, as well.

When an Alabama judge earlier this year issued a default judgment, finding that I had defamed Republican political operative and lawyer Jessica Medeiros Garrison to the tune of $3.5 million, what news organization broke the story?

Was it al.com, the largest mainstream outlet in my home area? No. Was it a progressive site that had followed the constitutional issues raised by my unlawful arrest, related to alleged defamation of another GOP operative (Rob Riley), in October 2013? Nope. Was it a Web site with special interest in digital communications or the rights of bloggers and Web publishers? No siree.

It was the The Daily Caller, a news and opinion Web site launched in 2010 by conservative commentator Tucker Carlson and Neil Patel, a one-time adviser to former Vice President Dick Cheney. Is The Daily Caller an objective source of news on the Garrison case? Not exactly. One of its contributors is president of something called The Rule of Law Defense Fund. And her name is--you guessed it--Jessica Medeiros Garrison. (I'm not making this up: A Republican is president of an organization that purports to defend the "Rule of Law." Try not to guffaw.)

Does The Daily Caller ("The DC") reveal this little conflict of interest to its readers? Nah. Is the conflict reflected in the Web site's coverage? Oh yes, and we will explain in a moment.

That's the same Foster Friess who, Breitbart Unmasked (BU) reports, provided seed funding for the National Bloggers Club (NBC), a consortium of down-scale right-wing pundits, such as Robert Stacy McCain, Aaron Walker, John Hoge, and John Patrick Frey. BU reports that Friess also helped fund Karl Rove's American Crossroads. (Speaking of Aaron Walker, I have a bizarre story about him. See note at the end of this post.)

The Simpson letter included allegations that Rove and Akbar had engaged in a homosexual relationship. Simpson's investigation of the matter came after she received a copy of Akbar's Grindr ad, which said he was looking for sex with "men who are Republican, political, and love to discuss politics and philosophy." I don't know about the philosophy part, but Karl Rove certainly seems to qualify under the rest of that description.

Case law dating back roughly 45 years shows that Akbar had no valid defamation claim against me. But he enlisted Montgomery lawyer Baron Coleman to send me a threatening letter, dated October 26, 2013, which was three days after Alabama deputies beat me up inside my own home, doused me with pepper spray, and hauled me off to jail for a five-month stay.

For good measure, The Daily Caller also lists Ali Akbar as a contributor--and that brings us back to Tucker Carlson's little toy and the "journalism" it practices.

How do we know The DC broke the story about Jessica Garrison's default judgment? You can check out the site's story here, which is dated April 13, 2015. That's before I knew about the judgment, and it was one day before al.com reported on it. (If you see a note revealing to readers that Jessica Garrison writes for the site, please let me know; I haven't found one.)

Bloggers under the Ali Akbar umbrella took note of the story. You can read a couple of their takes here at Hogewash and here at The Other McCain.

This provides a classic example of how the right-wing noise machine works. You have The Daily Caller breaking the story about the default judgment in the Garrison case, while members of Ali Akbar's National Bloggers Club quickly weigh in. (Gee, I wonder how The DC found out about the Garrison default judgment. Oh, that's right, Garrison works for them--and the site didn't tell us. That's objectivity you can trust.)

So we have two entities in the right-wing media orbit--The DC and the NBC-- taking a special interest in the Garrison story. And what, or who, ties both of them together? It's Foster Friess, who provided start-up funding for both.

Foster Friess
(From fosterfriess.com)

What kind of journalism does Foster Friess support? If The Daily Caller story is any indication, the journalism would have to improve to reach the level of shoddy. In fact, I'm not sure you can call it journalism at all, based on the following:

* The story does not mention that the $3.5 million was awarded in a DEFAULT judgment. That means it was not based on the merits of Garrison's claim; it was based on the fact I did not appear at key junctures in the case because I did not receive notice of depositions, hearings, etc.

* The story mentions neither the foreclosure nor the wildly unlawful nature of my arrest, in violation of more than 200 years of First Amendment law. Is that because right-wing interests connected to The Daily Caller were involved in, or at least had advance knowledge of, both the foreclosure and the arrest?

* The story states that Garrison and Attorney General Luther Strange vehemently denied my reports of an extramarital affair. The story does not say that their denials came at a hearing where no opposition was present. It does not say that their denials came without any cross examination, with no depositions, production of documents, or any other form of discovery. It also does not say that Jessica Garrison's divorce file remains sealed in Tuscaloosa County, for no apparent lawful reason.

* The story refers to my reporting on Garrison and Strange as "flimsy accusations." Oh, but wait, Jessica Garrison works for the outfit that produced the story. Did Tucker Carlson's team reveal that to its readers? Nope. Can't get much more "fair and balanced" than that.

Do Foster Friess and Ali Akbar have a vested interest in such sloppy and shallow reporting on the Garrison judgment? Does The Daily Caller have other conflicts of interests that might explain its reporting?

We will examine those questions in an upcoming post.

Note: Aaron Walker is one of the more interesting members of the National Bloggers Club. A Yale-educated attorney who lives in Virginia, Walker's blog is called Allergic to Bull. He used to blog under the name Aaron Worthing, until his real identity was revealed in the course of the many legal proceedings that have accompanied the right-wing feud with Brett Kimberlin. Walker first came to my attention when he was a leading force behind "Everybody Draw Mohammed Day," an effort apparently to fire back at, or provoke, Islamic religious sensibilities.

Walker claims that he and his wife lost their jobs because of his outing during the course of the Kimberlin battle. I certainly can empathize with that kind of thing, although I'm not sure Kimberlin caused the job loss.

(Not surprisingly, Walker made no effort to report on McGarity's criminal history, which we've revealed here, here, here, here, here, and here, Walker also chose to ignore the ugly history of McGarity's lawyer, William E. Swatek, which includes a suspension of his license and a criminal trial for perjury. We've covered that subject here, here, here, here, and here.)

On the McGarity post, almost everything the source told Walker is false--so Walker either was duped or he didn't try very hard to find someone who actually knows what he is talking about. Heck, Walker could have contacted me; I've been out of jail since March 26, 2014. Or he could have checked public records that are on file in the Alabama court system.

At one point, Kimberlin brought second-degree assault charges against Walker, and Walker was arrested in court for "incitement" while arguing the case. (Maryland has some strange laws, including provisions for "peace orders," which are new to me but have played a prominent role in the various Kimberlin cases.)

Walker has called me a hypocrite for allegedly supporting Kimberlin's efforts to silence him via "peace orders," while decrying Rob Riley's efforts to silence me via a TRO/preliminary injunction. Walker seems to miss several points: (1) Analysts on the left and right have stated that Riley's actions against me represent prior restraints under the First Amendment. No one seriously doubts that I was the victim of unlawful court actions, which Rob Riley requested; (2) I don't know if Kimberlin's efforts regarding peace orders against Walker are lawful and supported by facts--and I've made no claim about them one way or another. Peace orders, it seems, are a strange provision of Maryland law, and I have not researched them or analyzed their propriety in the Kimberlin cases; (4) Walker and others in his blogging group claim I am a supporter and advocate of Brett Kimberlin. The truth? Of the 2,903 posts I've written at Legal Schnauzer,exactly one has been about Brett Kimberlin--and that was the result of a trusted source asking me to report on the subject. I've had one brief phone conversation with Kimberlin, and that is the extent of my personal communication with him.

Here is the theme of my one post about Brett Kimberlin: I admire his spunk and tenancity, his willingness to fight back against a conservative onslaught. Too few liberals, in my view, are willing to take on such battles--in fact, many of them are wusses. Brett Kimberlin might have shortcomings, as we all do, but being a wuss is not one of them.

That was pretty much it. Did I claim to know anything about peace orders, and Kimberlin's apparent use of them? Did I claim that Kimberlin's legal arguments were solid, while Walker's were not? The answer to both questions is no. I tried to paint a general picture of an ideological online feud and show that at least one liberal has the cojones to fight back.

I was very much an outsider in all of this, not even paying much attention, until someone decided (inaccurately) that I must be the "RogerS" who was encouraging Kimberlin to file a RICO lawsuit. Next thing you know, Alabama deputies are dragging me off to jail, and I'm a regular topic of discussion for Aaron Walker and other right-wing bloggers.

In following this long-and-winding story, it's hard not to notice that Aaron Walker seems to be the "Gladys Kravitz of the blogging world." The Seth Allen-Brett Kimberlin dispute did not involve him, but Walker stuck his nose in it anyway. "Everybody Draw Mohammed Day," to any semi adult, was a pointless, stupid idea--the digital equivalent of soaping someone's windows--but Walker got involved in it anyway. Walker had every right to report on Brett Kimberlin's background, and to take issue with Kimberlin's politics, but court documents indicate Walker and others took their distaste for Kimberlin and turned it into a jihad that included stalking and harassment. Walker also had every right to report on my case and criticize me in any number of ways, but he jumped on the bogus "RogerS" train and essentially accused me of a crime I didn't commit. He then cited multiple anonymous sources, which is fine, but they provided an avalanche of false information--much of which could have been proven false with a check of public records, or by contacting me.

The notion of Aaron Walker as a "Gladys Kravitz" kind of character brings me to a point that hits close to home. On October 28, 2013, Walker wrote a post titled "Down Deep Into Roger Shuler's Paranoid Mind." If you scroll to the comments section, you see that the second item reads as follows:

SPQROctober 28, 2013 at 12:37 PM

David Schuler (sic)?

Why would the commenter ask this? Apparently, it's because Walker's original headline was "Deep Down In David Shuler's Paranoid Mind." It's possible that Walker originally referred to me as "David Shuler" throughout the post, but it's hard to tell about that.

I know from experience that you can change the headline on a blog post, but the URL will reflect the original headline--at least in the Blogger format that Walker and I both use. That means Walker's original headline referred to me as "David Shuler."

Why is that interesting? Well, I have a brother named David Shuler, who is a lawyer in a state other than Alabama. In fact, I've referred to him (not by name) in at least one post, probably more. Here is the one reference I know of for sure:

We certainly do not think all lawyers are awful people. We actually know some who are honorable. In fact, such lawyers--Don Siegelman, Paul Minor, Wes Teel--have been central characters in many of our posts, as victims of bad apples in their own profession. Some noble lawyers--Jill Simpson, Scott Horton, Andrew Kreig--have been consistent sources of insight and inspiration for this blog.

I was not predisposed to dislike lawyers. Heck, my youngest brother is a lawyer--in a state other than Alabama--and I've always thought of him as an upstanding guy.

Why did Aaron Walker refer to me as "David Shuler"? Was it just a "slip of the keyboard," signifying nothing? Or maybe it means something else. Maybe Aaron Walker and David Shuler, as fellow members of the legal tribe, have communicated with each other for some reason. What would they have to talk or e-mail or text about? Maybe Aaron "Gladys Kravitz" Walker just could not keep his nose out of my personal business. Maybe Aaron Walker's history of stepping in doo-doo that could easily have been avoided is repeating itself.

Walker already refers to me as "paranoid," so I might as well play the part. Doesn't it seem strange that, of all the incorrect names he could have chosen for me, the one that came out just happened to be David--and I have a lawyer brother by that name? Isn't it also curious that my brother's name has several variants--Dave, Davy--but Walker spit out "David," which is the version my brother always has gone by.

Could I be way off base on my Aaron Walker/David Shuler angle? Sure. But I do know that lawyers tend to stick together--and I know that their professional loyalties can sometimes outweigh other loyalties, such as to a blood relative, a brother. I also know that, through bar directories and such, lawyers have many avenues for looking each other up. Again, whether they are based in Vermont or California, they all are members of the same club.

I know this for sure: Aaron Walker's slip-up on a headline has given me quite a bit to think about.

Tuesday, July 21, 2015

An Alabama judge granted a preliminary injunction, leading to my five-month incarceration, before a summons was issued in the case and before I was served, according to a letter from a civil-rights lawyer who reviewed the file when it was sealed.

Birmingham attorney David Gespass made the stunning revelations in a letter, dated October 31, 2013, to my wife, Carol, and me. (See letter at the end of this post.) Gespass wrote the letter between his two visits with me at the Shelby County Jail, where I had resided since my arrest on October 23 due to alleged contempt of court in a defamation lawsuit brought by Republican operative Rob Riley and lobbyist Liberty Duke.

A document that Riley and Duke filed on October 4, seeking to have Carol and me held in contempt and arrested, supports Gespass' statements.

While records show a summons was issued on October 16, according to Gespass, we never were served with it. The record also shows that we were not served during an unconstitutional traffic stop that Officer Mike DeHart conducted on September 29--and that's probably because the documents he handed us did not include a summons, meaning they were of no legal consequence. Since no other efforts (real or fake) were made to complete service, the record indicates we never were served.

What does all of this mean? It means the Riley/Duke lawsuit never existed because the defendants (Carol and me) were not summoned to court. It means Judge Claud D. Neilson had no authority to hear the case or order my arrest. It means the court had no jurisdiction over us, as we've claimed all along. It means Deputy Chris Blevins was a trespasser when, with no legal authority, he entered our garage, beat me up, and doused me with pepper spray. It means that all of the deputies who repeatedly traipsed over our property to supposedly serve us with court papers, which did not include a summons, had no authority to be there and also were trespassers.

In short, it means the whole process was more blindingly corrupt than even Carol and I could have imagined. Here is the scariest part of all: This was an "extra judicial process"--orchestrated by Rob Riley and Liberty Duke, the Shelby County Sheriff's Department, and whoever was pulling their strings--with no lawful authority from any court.

I have reported several times that my arrest, in essence, was a kidnapping because DeHart served us via a traffic stop that violated the Fourth Amendment right to be free from unreasonable searches and seizures. Thanks to the information in Gespass' letter, we now can remove the words "in essence" from that sentence.

I was kidnapped, pure and simple, by individuals who clearly knew they were acting outside court boundaries.

Whenever anyone is served with a lawsuit, the first document they likely see is the summons--it always should be right on top. The summons, signed by the court clerk, should identify the parties and the case number and instruct defendants that they have a certain period of time (usually 30 days) to respond. Many summonses include language like "This document is important; do not ignore it" in bold letters.

The deputies who gave the appearance of trying to "perfect" service had every reason to know there was no summons--and that means there was nothing from any court to authorize their actions. That reduces Blevins' actions in our garage to an assault and battery.

What is a summons and why is it important? A definition can be found here, at legal-dictionary.com. Here is the key information:

The summons is the document that officially starts a lawsuit. It must be in a form prescribed by the law governing procedure in the court involved, and it must be properly served on, or delivered to, the defendant. If the prescribed formalities are not observed, the court lacks authority to hear the dispute.

Were the prescribed formalities followed? Not according to Gespass. Here is the third paragraph from his letter:

First of all, both the temporary restraining order [TRO] and preliminary injunction (the latter is now in effect, but both say the same things) appear to have been issued before service was effected. The hearing on the preliminary injunction was on September 30, it [the injunction] was issued on October 4, and the summons was not issued until October 16. However, I would assume the preliminary injunction order was included in the service materials you threw away. One could argue that you are entitled to a new hearing, since you were not able to defend at the first one, but that still does not excuse failure to comply with a court order or seek reconsideration. Incidentally, the motion to quash was also denied, and, I believe, correctly so.

As we explained in a post yesterday, the last three sentences of that paragraph are utter bunk--because Gespass shows in the first two sentences that the court had no authority to hear the case.

David Gespass

Speaking of our Motion to Quash, we filed it on October 16, the same day the court finally issued a summons. It appears someone in the clerk's office saw our notice, was about to enter it into the file, and said, "Holy crap, there's no summons in this case! I guess I had better create one out of thin air, stat!" It's also possible the clerk discovered there was no file at all and decided to create a summons to give the illusion of some court involvement in the matter.

Do we have only Gespass' words to show there was no summons? Nope. One of Riley's own documents--Petition to Hold Respondents in Contempt, dated October 4, 2013--indicates the same thing. Item No. 4 in the petition, which begins at the bottom of the second page, states:

On September 30, 2013, the court held a hearing on the Petitions for Preliminary Injunction. Respondents did not attend the hearing even though they were provided notice of said hearing. That notice, contained in the TRO, was flagged when Respondents were served with it, which should have drawn Respondents' attention to the TRO and the date of the hearing on the Petitions for Preliminary Injunction.

First, the court record shows we were not served with the TRO. Second, a defendant is not called to court because a document is "flagged" with "the date of the hearing" (whatever that means). A defendant is called to court when he receives a summons--and the record shows a summons was not issued until October 16, and we never were served with one.

Countless news accounts of my incarceration--even some that were well reported and generally accurate--claimed I "ignored a court order" and hinted that my arrest was somehow justified (at least a little) because we did not appear in court. Now we know that Carol and I never were summoned to court, that we had no lawful reason to be there.

Many questions remain about the flagrant corruption surrounding the Riley case, and here is one of the biggest: If the court did not issue a copy of a summons and the complaint for deputies to serve, who did give it to them? The evidence suggests that someone connected to Riley and Duke gave copies of the complaint directly to the sheriff's office--and deputies went through the charade of "serving" them, knowing there was no summons and no authorization from the court. In other words, the plaintiffs and law enforcement conducted a nifty end run around the judicial process.

What can we take from all of this? Well, the latest information removes all pretense of lawfulness surrounding my arrest and incarceration. When the court appeared to have some authority over the matter, that gave at least a hint of legitimacy to the deputies' actions. Without court authority, however, cops become common thugs--especially in a civil matter, such as this.

That means I was the victim of a felony assault, trespassing, kidnapping, obstruction of justice, deprivation of constitutional rights, conspiracy . . . there is no telling how long the list might get. And these are criminal matters.

It's long been clear that Carol and I have strong civil claims connected to all of this. But now, it appears to have jumped into heavy-duty criminal territory--with Rob Riley and Liberty Duke at the center of it.